Holmes v. Page, et al.

No. 2:10-CV-04789 (C.D. Cal. 2010) 

Comment by Charles Cronin

There’s little question that the defendant’s song (apparently once very popular) was engendered by, and is significantly similar to, the plaintiff’s — which was authored and performed only shortly before the appearance of defendant’s song with the same title. Whether the obvious musical and topical similarities between the songs constitute illicit appropriation depends, therefore, on whether, or the extent to which, the musical and topical commonalities are of protectable expression, or simply commonplace conventions that cannot be monopolized.

The answer to that question is not immediately apparent from the disputed material in the instant case. Both songs open with a guitar playing a gnomic and repeating descending scale motif, followed by plaintive vocal outbursts with little, if any, discernible melodic significance. And the words of both songs deal with the shopworn conceit of a coldhearted woman’s mistreatment of a devoted suitor. The two songs are, and sound, similar, but then again, so do many others that use these “folk-rock” conventions. Should the fact that the defendant’s song used a remarkably similar “constellation” of musical, stylistic, and topical elements found in the plaintiff’s song tilt toward liability (as proposed in the much-reviled “Blurred Lines” claim) despite the fact that none of the elements alone might or should be protected?

There were a number of procedural hitches in this litigation, apparent from the Complaint and Answer (below): U.S. jurisdiction over a U.K. citizen, and a period of forty years between the alleged infringement and the plaintiff’s initiating his claim. The parties settled in 2011. Of course the financial terms of the settlement have not been made public, but the defendant’s song is now distributed with a statement that it was inspired by James Holmes’ work. The case was “dismissed with prejudice,” which, according to the Judicial Branch of California, means “you cannot refile your case ever.”

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Complaint (August 16, 2010): PDF

Defendant Page’s Answer to Complaint (April 7, 2011):  PDF